House Votes to Extend Controversial Surveillance Legislation as Supreme Court Prepares to Weigh on its Constitutionality

Friday, September 21, 2012, by Ken Jennings

The House has taken the first step to extend controversial “secret wiretap” authority provided by the 2008 amendments to the Foreign Information Surveillance Act (FISA).  The bill, H.R. 5949 (“FISA Amendments Act Reauthorization Act of 2012”), extends the FISA Amendments Act of 2008 (FAA) for five years and passed with a vote of 301-118.  The legislative fate of the FISA amendments, which were originally set to expire at the end of this year, now lies with the senate.  S. 3276, the “FAA Sunsets Extension Act of 2012,” mirrors the house bill and is currently subject to a hold put in place by Senator Ron Wyden.  Despite the hold, the Senate is expected to vote on the bill later this year. 

An obvious tension exists between the need to answer difficult-to-track threats from globally distributed terrorist networks, and the protection of the basic liberties promised by the Fourth Amendment of the U.S. Constitution 

The FISA was originally put in place to protect the international communications of U.S. citizens from warrantless search.  After the terrorist attacks of 9/11, however, the FAA was passed to remove some of those protections in the interest of national security.  Under the FAA, the National Security Agency (NSA) is allowed to monitor electronic communications of, “persons reasonably believed to be located outside the United States,” for intelligence purposes.  The FAA opens the door for the warrantless collection of the communications of U.S. citizens who are on the domestic end of an international call or e-mail exchange.  An obvious tension exists between the need to answer difficult-to-track threats from globally distributed terrorist networks, and the protection of the basic liberties promised by the Fourth Amendment of the U.S. Constitution. 

Some members of Congress support the bill, claiming that there is no evidence of any Fourth Amendment violation.  Others, such as Senator Wyman and non-profit groups like the Electronic Frontier Foundation (EFF), call for advanced oversight.  The EFF has filed a lawsuit to obtain information regarding confidential hearings of the Foreign Intelligence Surveillance Court (FISC).  Some Congressmen have even been accused of voting on the bill without understanding its contents.

In a timely response to the issue, the Supreme Court has announced that it will weigh the constitutionality of the FAA this coming October.  The vehicle for Supreme Court review lies in a case originally brought by the ACLU. Two defense attorneys are notable among the plaintiffs: Scott McKay and David Nevin are both involved with representing accused terrorists. Nevin is currently serving as defense attorney for Khaleed Sheikh Mohammed, who is accused of involvement in the attacks of 9/11.  The plaintiffs are concerned about the warrantless collection of the communications they have had in connection with their duties, some of which even fall under attorney-client privilege.  Though the plaintiffs are unable to point to any particular violation of their Fourth Amendment Rights (if such evidence exists, it is strictly confidential), the lawsuit claims significant costs have been accrued in an attempt to keep their communications private.  Whatever the outcome, the stakes of this case are high.  Proponents of the legislation claim that it is necessary tool to identify threats that might lead to another tragedy like 9/11.  Its opponents remind us of the damage to our way of life, when fear leads to the erosion of individual liberties.